J.E.A. Shuaibu V. Nigeria-arab Bank Ltd. (1998)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

The appellant as plaintiff in the trial court claimed against the respondent/defendant in paragraphs 20 and 21 of his Amended Statement of Claim the following reliefs:-

“20. Whereof by reason of his dismissal, the plaintiff has suffered loss and damages and thereby claims as follows:-

(i) A declaration that his dismissal is wrongful, unlawful, unconstitutional, contrary to the rules of Natural Justice, and the conditions of service as per the Collective Agreement and therefore Null and void and of no effect whatsoever.

(ii) A declaration that his dismissal being wrongful, unlawful and of no effect whatsoever he is entitled to be reinstated to his job and to be paid the arrears of his salary and allowances from 31/8/88 till the date of judgment as per paragraph 18 above.

21. Alternatively, special damages for wrongful dismissal as follows:-

(a) Annual salary from 31/8/88 for 25 years which is the retirement age amounting to N525,600.00.

(b) December Bonus of N1 ,745.33 for 25 years amounting to N43,633.25.

(c) Leave Allowance of N1047.20 for 25 years amounting to N26,180.

(d) Housing Allowance of N6,000,00 for 25 years amounting to N150,000.00.

(e) Transport allowance of N300.00 per month for 25 years amounting to N90,000.00.

(f) Entertainment allowance of N600.00 for 25 years amounting to N15,000.00.

Total for Special Damages is N838,413.25.

(ii) General Damages of N161,586.75.

Grand Total = N1 million.”

At the conclusion of settlement of pleadings by the parties the case proceeded to trial. The plaintiff gave evidence during which some documents were put in as exhibits to support his case. In this judgment I shall refer to some of these documents where I deem it necessary.

In defence of the case put up by the plaintiff the defendant called 2 witnesses. At the conclusion of the hearing learned counsel for the parties addressed the court.

The learned trial Judge considered the evidence adduced before him and came to the following conclusions:

“For all the reasons above mentioned, I have no difficulty in coming to the conclusion that the dismissal of the plaintiff was unlawful and wrongful because it was contrary to the rules applicable in that regard as per Exhibit “G” between the plaintiff and the defendant, and because it was contrary to the elementary principles of Natural Justice. I therefore hold that since the procedure adopted by the defendant in summarily dismissing the plaintiff a confirmed, permanent and pensionable officer was not only contrary to the agreed procedure as contained in Exhibit “G” but was also contrary to the elementary rules of Natural Justice, the said letter of dismissal i.e. Exhibit “F’ dated 31st August 1988 is null and void and of no effect whatsoever. By this I must not be taken as formally declaring that the contract between the plaintiff and the defendant is still subsisting. I have not been asked by the plaintiff so to do.”

XXXX

“The plaintiffs service with the defendant must therefore be treated as having come to an end on 31/8/88 and the plaintiffs remedy lies in a claim for damages which I shall now endeavour to assess.”

XXXX “I therefore hold that the plaintiff at the time of his dismissal by the defendant still had 25 years of service but for the said, wrongful dismissal by the defendant. The plaintiff at the time of his dismissal was earning an Annual salary of indeed all the claim contained in paragraph 18(a) to (f) of his said amended statement of claim though supported by the plaintiffs evidence were not challenged or controverted by the defendant. I therefore accept the figures contained therein as true for the purposes of assessing the quantum of Damages the plaintiff shall be entitled to.”

XXXXXX “The measure of Damages payable to the plaintiff therefore for his wrongful dismissal by the defendant as indeed rightly claimed by him should be” the amount he would have earned under the said contract of service with the defendant Bank for the period until the defendant could lawfully have terminated it.”

XXXXX

” Although the plaintiff gave evidence in support of his special damages based on 25 years he would still have served and which I accept as true, I will proceed, following the principles laid down in Salt v. Power Plant Company Ltd. supra; Adejumo v. U.C.H. Board of Management (1972) 2 U.I.L.R. 145 at page 179-181 and also considering the possibility of the plaintiff securing an alternative employment also where probably after the stigma arising from the said unlawful dismissal has been rubbed off, and inspite of the sum of N838,413.25 claimed as Special Damages, representing the plaintiffs salary and sundry Allowances for 25 years to and do hereby award only a lump sum of N155,000.00 in satisfaction of all the claims of the plaintiff in terms of Special Damages.”

XXXXX “I accept and find that the plaintiff is entitled to some measure of General Damages. This breach of contract as perpetrated by the defendants who were in a position to know the limits of their powers vide Exhibit “G” left much to be desired. I hereby do award to the plaintiff the sum of NI8,500.00 (Eighteen thousands and five hundred Naira only) as General Damages.

In the circumstances, there will be judgment for the plaintiff against the defendant Bank for the sum of N173,500.00 made up as follows-

(1) N155,000 being Special Damages, and (2) N18,500 being General Damages for wrongful Dismissal.”

Dissatisfied with the decision and the reliefs granted thereof to the plaintiff by the trial court, the defendant appealed to the Court of Appeal, Jos Division. In a considered judgment prepared and delivered by Ndoma-Egba JCA with which both Mukhtar and Okezie JJCA agreed, the appeal was allowed. The judgment of the trial court was set aside and order for dismissal of the plaintiffs claim was substituted. The plaintiff has now appealed to this court.

Henceforth the plaintiff and the defendant shall be referred to in this judgment as the appellant and the respondent respectively. In compliance with the rules of this court the appellant and the respondent filed and exchanged briefs of argument, in the appellants’ brief the following 6 (six) issues have been raised for determination –

“1. Whether the Court of Appeal was properly constituted when judgment was delivered on 10th April, 1991.

2. Whether the issue of cost arose as a ground of appeal before the Court of Appeal and whether it was even canvassed as an issue in that court.
3. Whether the Court of Appeal did not rely on facts unsupported, by evidence in coming to certain conclusions and if it did whether that did not occasion a miscarriage of justice.
4. Did the Court of Appeal properly treat Exhibit J with due regard to its evidential value.
5. Was it Exhibit ‘A’ the appellant’s letter of Employment or Exhibit ‘G’ that governed the conditions of service of the appellant with the respondent with due reference to the state of pleadings and the evidence adduced at the trial court.
6. Was the Court of Appeal right on the pleadings and evidence to have concluded that in the circumstances of this case the appellant was given a fair hearing by the respondent before his summary dismissal.”

While in that of the respondents’ brief these two issues have been identified:

“a. Whether the Court of Appeal was properly constituted in the hearing and determination of the appeal;

b. Whether the Court of Appeal was correct in holding that the dismissal of the appellant was justified.”

The two issues raised in the respondent’s brief have been sufficiently covered by the six issues formulated by the appellant and I shall adopt the issues raised by the appellant in deciding this appeal. Where I find it convenient some of the issues will be taken together.

Mr. M.A.O. Okulaja of J.B. Majiyagbe & Co. Chambers and representing the respondent filed a Notice of Preliminary Objection against the competency of the Notice of Appeal in that-

“1. The Notice of Appeal in this matter is incompetent and therefore null and void;

2. All the grounds of appeal in the Notice of Appeal are incompetent as they do not meet the requirements of the law, particularly with regard to Order 8 rule 2(3) & (4) of the Supreme Court Rules, and Section 213(2) and (3) of the Constitution;
3. The particulars to Ground 1 of the Grounds of Appeal are erroneous and consequently do not support the ground of appeal it was meant to support;

It is to be observed that the Justices of the Court of Appeal who heard the appeal are listed on page 121 of the record of proceedings while the Justices who sat and gave judgment on 10th April, 1991, are listed on page 122 of the record of proceedings.

4. The method adopted by the appellant in amending Ground 1 of the Grounds of Appeal whereby he formulated another particular in his brief is improper.”

Before going into the arguments on the merit and demerit of the appeal, I shall deal with the preliminary objection raised by learned counsel for the respondent as reproduced above.

Learned counsel for the appellant conceded that ground 4 of the grounds of appeal is not a ground of law and having filed the same without leave, it is incompetent and it was struck out without further ado. As regards the other grounds, i.e. grounds 1,2,3,5,6 and 7 having gone through these grounds, I hold the opinion that grounds 1,2,5 and 7 are grounds of law while grounds 3 and 6 are either of fact or mixed law and fact. The preliminary objection therefore partially succeeds and grounds 3 and 6 which were filed without leave contrary to S. 213 (3) of the 1979 Constitution, are hereby struck out.

Issue 4 of the appellant’s brief is hinged to grounds 3 and 6 while Issue 5 is related to ground 4. Since grounds 3, 4 and 6 are held to be incompetent and struck out, issues 4 and 5 are equally incompetent and are hereby struck out.

It is pertinent to give a brief account of the facts involved in this case as contained in the following paragraphs of the Further Amended Statement of Claim:

“3. The plaintiff was employed by the defendant in May 1980 on a salary of N5,000 per annum vide a letter of appointment Reference No, 4020/ ADM/FIN dated 23/5/80 herein pleaded and the plaintiff accepted the offer.

4. The plaintiffs appointment was subsequently confirmed by a letter Reference No. 418 dated 12/1/81 with effect from 1st January, 1981 and simultaneously conferred with signatory ‘B’ powers. The said letter of confirmation is herein pleaded.
5. The plaintiff performed his duties diligently and satisfactorily and rose to the rank of Manager ‘B’ in January, 1987 as per the letter of promotion reference No. 172/Admin/Fin dated 29th January, 1987 which the plaintiff will rely upon at the trial.
6. On 25/11/87 the then Area Manager North of the defendant came to the Bauchi branch with a cheque of N1 million in favour of Cotos Nigeria Limited which was paid into its account.
7. On the said 25/11/87 the said Area Manager, Late Alhaji S.B. Abdulkadir, accompanied by the Secretary and General Manager of Cotos Nigeria Limited, instructed the plaintiff to pay the sum of N200,000.00 out of the account of Cotos Nigeria Limited.
8. Before instructing the plaintiff aforesaid, the said Alhaji S. B. Abdulkadir furnished the plaintiff with the following facts and documents:-

(a) A copy of the Board of Directors Resolution of Cotos Nigeria Ltd. appointing him Director and Chairman of the Company and removing the former Chairman. The plaintiff shall found on the Resolution at the trial.

(b) A certified (sic) true copy of Form Co. 7 filed in the Companies Registry in which the said Alhaji S. B. Abdulkadir was appointed a Director of Cotos Nigeria Ltd.

(c) A letter Reference No. SEC1221/87-24 of 14/9/89 appointing Alhaji S. B. Abdulkadir as Director and Chairman of Cotos and the latter’s letter of acceptance of the offer dated 16/9/87.

(d) The said Alhaji S. B. Abdulkadir informed the plaintiff that his colleagues at the Head Office were aware of the affairs of Cotos Nig. Ltd.

(e) The said Alhaji S. B. Abdulkadir signed the payment Voucher not only for Cotos Nigeria Ltd also for Nigeria Arab Bank Ltd as its Area Manager authorising the payment of the said N200,000.00 to him for use by the company.

9. The plaintiff having satisfied himself as to the genuiness of the documents presented and in obedience to the instruction of his superior officer made the said payment. The plaintiff will rely on the aforementioned documents at the trial.

XXXXXX

11. On 13/7/88 the plaintiff was instructed to proceed on his annual leave preparatory to assuming a new station and upon resumption, was requested to proceed to Lagos for an attachment course of about 6 weeks at the Head office.
12. Whilst in Lagos he was asked by the Executive Director to brief him on the transaction regarding the payment of N200,000.00 from Cotos Nigeria Limited Account. So as to enable him properly discuss with the former Chairman of Cotos Nigeria Limited who would be coming for a discussion the next day.
13. After the said briefing, the plaintiff was requested to put it into writing and the plaintiff did so after pointing out that he would provide a more comprehensive write up, after going through the

records at the Bauchi branch.

14. On the 25/8/88, the plaintiff was served with a letter transferring him to the Credit and Marketing Department but before he could assume duty, he received another letter reference 7786/Admin/Fin dated 31/6/86 dismissing him from the defendant’s employment.

The said letters are hereby pleaded.”

The remaining issues to be considered are 1, 2, 3 and 6

Issue 1. This is related to ground 1 in which the complaint is that the Court of Appeal judgment was a nullity because a Justice who did not partake in the hearing of the appeal wrote a concurring judgment.

In his effort to satisfy this court that the proper panel that sat aver the appeal and delivered judgment was composed of Justices Ndama-Egba, Mukhtar and Okezie of the Court of Appeal, Jos Division, Mr. Okulaja of Counsel for the respondent referred this court to page 121 of the record dated 20/2/91 wherein the constitution of the court that heard the appeal and reserved the judgment to 10/4/91 was recorded as follows:-

IN THE COURT OF APPEAL

J0S JUDICIAL DIVISION

HOLDEN AT J0S

ON WEDNESDAY THE 20TH FEBRUARY, 1991

JUSTICES

HON. JUSTICE E.T. NDOMA EGBA JUSTICE, COURT OF APPEAL

HON. JUSTICE A.M. MUKHTAR JUSTICE, COURT OF APPEAL

HON. JUSTICE O.A. OKEZIE JUSTICE, COURT OF APPEAL

Learned Counsel also referred to S. 258(3) of the 1979 Constitution (as amended) and the decisions in Ekpan v. Uyo (1986) 3 NWLR (Pt.26)63 at 76; Ige v. 0luloyo (1984) 1 SCNLR 158; Modukolu v. Nkemdilim (1962) I All NLR 587 at 595; (1962) 2 SCNLR 341; U.B.N. Ltd. v. Edet (1993) 4 NWLR (Pt.287) 288 and urged the court to hold that the appearance of the name of Justice Adia J.C.A. (as he then was) and his concurring judgment in the appeal was a genuine mistake resulting from mixed – up occasioned by the registry when campiling the record or by the Secretary of Adio JCA when typing his judgments. Learned counsel further referred the court to page 122 in which the same panel that heard the appeal was recorded to have delivered a unanimous judgment an 10/4/91.

In presenting his argument on the issue, learned counsel for the appellant, Bawa Pyiki Esq, submitted that “the court was no longer properly constituted when Adio J.C.A became a member of the panel that delivered judgment an 10th April, 1991. When the appeal was argued an 20th February, 1991, Mukhtar J.C.A. was a member of the panel. She however did not contribute to the judgment of 10th April, 1991 thereby leaving only two Justices contrary to the express provisions of sectian 9 to the Court of Appeal Act, 1976. The composition of the court having changed, the court has become incompetent and any judgment given is therefore a nullity. See Sken-Consult (Nig) Ltd. & Ors. v. Ukey (1981) 1 S.C. 6. it does not matter that the judgment was in all respect correct as to the issues raised. See also Modukolu v. Nkemdilim (1962) 1 All NLR 587 at P. 594 (1962) 2 SCNLR 341.

Learned counsel therefore submitted that S. 253(3) .of the 1979 Constitution is irrelevant and urges the court to declare the judgment of the Court of Appeal in the case and delivered an 10/4/91 as null and void.

From the argument and submissions of learned counsel on both sides it is common ground that the panel that heard the appeal was constituted by Ndoma-Egba, Mukhtar and Okezie JJCA. On page 122 the record shaws as follows –

IN THE COURT OF APPEAL

JOS JUDICIAL DIVISION

HOLDEN AT JOS

ON WEDNESDAY THE 20TH FEBRUARY, 1991

JUSTICES

HON. JUSTICE E.T. NDOMA EGBA JUSTICE, COURT OF APPEAL

HON. JUSTICE A.M. MUKHTAR JUSTICE, COURT OF APPEAL

HON. JUSTICE O.A. OKEZIE JUSTICE, COURT OF APPEAL

APPEAL NO.CA/J/147/90

BETWEEN:

C J.E.A. SHU’AIBU RESPONDENT

AND:

NIGERIA-ARAB BANK LTD APPELLANT

Kayode Olatunji, Esq., for the appellant

Bawa Pyiki Esq., for the respondent.

Judgment: – Read by me. Appeal unanimously allowed.

(S.G.D.)

E.T. NDOMA-EGBA

JUSTICE, COURT OF APPEAL

10/4/91”

The above excerpt of the record shows that the judgment was delivered by the correct panel. But curiously enough pages 151 & 152 recorded both Adio and Okezie JJCA as delivering concurring judgments to the lead judgment of Ndoma- Egba JCA. Apart from the simple concurring judgment of Adio JCA reproduced on 151, no where in the record of proceedings did his name appear as taking or playing any part in the appeal.

S. 258(1), (2) and (3) of the 1979 Constitution provides as follows:-

“(1) Every court established under this Constitution shall deliver its decision in writing not later than three months after the conclusion of evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivering thereof.

(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered, and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.

(3) A decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members.”

Sub-section (3) supra clearly provides a solution to a situation like the one at hand in this case as it stated that where the decision of the court consists of more than one Judge, the concurring opinion expressed by the majority Justices shall be the binding judgment. The sudden appearance of the name of Adio JCA as delivering a concurring judgment must be without doubt a genuine mistake made in the course of compiling the record. Generally a court possesses the inherent power to amend its clerical slip in order to avert any misapprehension that may arise therefrom. This court has equally the inherent as well as statutory power unders. 22 of the Supreme Court Act, 1960 to correct such a slip made by the courts below. See Asiyanbi v. Adeniji (1967) 1 All NLR 82 and A.G. of Oyo State & Ors. v. Fairlakes Hotel Ltd. & Anor. (1988) 12 SCNJ (Pt. 1) at 12; (1988) (No.1) 5 NWLR (Pt.92) 1. What was recorded as concurring judgment of Adio JCA if excluded, would not affect the validity of the majority judgment or Ndoma-Egba and Okezie JJCA even if it were to be taken that Mukhtar JCA delivered a dissenting decision. See s. 258(3) of the 1979 Constitution (supra) and s. 9 of the Court of Appeal Act. 1976. The prime duty of any court in taking any decision is to do substantial justice. The wheel of justice could no longer be allowed to be clogged with technicalities. See Joseph Afolabi and 2 Ors. v. John Adekunle & 1 Or. (1983) 2 SCNLR 141 particularly at p. 149 where Aniagolu JSC delivering the lead judgment of the court with what Irikefe and Bello JJSC (as they then were) and Idigbe and Obaseki, JJSC all agreed, opined thus:-

“…….it is perhaps necessary to emphasize that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in whirligig of technicalities, to the detriment of the determination of substantial issues between them.”

See also Gwonto v. The State (1983) 1 SCNLR 142. In the light of the reasons above, I am unable to accept the argument of learned counsel for the appellant that because of the mix-up or accidental slip the judgment of the Court of Appeal is rendered incompetent, null and void.

Issue 1 has not therefore been established in favour of the appellant and it fails.

Issue 2: In the brief filed by learned counsel for the appellant he presented his argument as follows:-

“On the issue of costs, it is our submission that it was neither a Ground of Appeal before the Court of Appeal nor was it canvassed as an issue in the brief. The Court of Appeal was therefore clearly wrong to have suo motu raised and dealt with it. See page 132 of the record.”

Learned counsel cited and relied on the case of Okoye & Ors. v. Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) 7 SCNJ 365; (1991) 6 NWLR (Pt.199) 501.

In reply Mr. Okulaja of respondent’s counsel referred to page 132 from line 18 to 28 of the record and contended that what was contained therein was a mere comment or an observation by the learned Justice of the Court of Appeal which did not decide any issue against the appellant and could not therefore qualify even as a ground of appeal. He submitted that it was wrong, for the learned counsel for the appellant to seize on every comment to raise a ground of appeal and urged the issue to be dismissed.

The penultimate paragraph that came under criticism by learned counsel for the appellant reads:-

“I observe here and now that it seems to me irregular for the learned trial Judge to have re-opened the case after signing judgment and without any application for costs by counsel. Indeed, the question of costs is at the discretion of the court. It appears to me however, that there was no basis for the exercise of the trial court’s discretion on costs. Furthermore, there is no indication that the decision on costs was considered and signed before the court rose for the day. This action may not vitiate the proceedings. It should not however, be encouraged.”

Reading the excerpt above, I am in agreement with the learned counsel for the respondent that what was stated therein was a mere passing remark by Ndoma-Egba, J.C.A. It did not amount to a decision within S. 277(1) of the 1979 Constitution. It was emphasized in Wilson v. Osin (1988) 4 NWLR (Pt.88) 324 that it is not every pronouncement made by a Judge that can be made the subject of appeal, but only such that qualifies as a decision under S. 277(1) of the 1979 Constitution. The point is totally misconceived and is lacking in substance. See also A.G. Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1; Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172 and Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47.

The remark complained of did not affect the decision of the Court of Appeal and no miscarriage of justice resulted. Both the ground of appeal and the issue culled therefrom fail.

Issue 3. In relation to this issue learned counsel for the appellant referred to statement of pages 130 – 131 of the record of proceedings where Ndoma-Egba JCA in the lead judgment said “Facilities can only be granted on sufficient funds. The company, (Cotos Nigeria Limited) was only N1,000.00 on credit” and submitted that the conclusion was not based on any evidence. In support of this he referred to the evidence of P.W. I where he said-

“I now say that the Manager can disburse funds but cannot grant overdraft facilities where the customer’s Account has insufficient funds. I saw a credit of N1, 000,000.00 in favour of Cotos Nig. Ltd.”

and then further submitted that the Court of Appeal did not appreciate this vital fact and therefore treated the transaction as that of granting an over-draft of N200,000.00 to a Company that was only N1,000.00 in credit; and that it would have arrived at a different conclusion if it had appreciated that the N200,000.00 was withdrawn from the amount of N1,000.000 already paid into the account of Cot as Nigeria Ltd. He submitted there was no evidence on which the Court of Appeal based its finding that the documents presented to the appellant by the Area Manager were fictitious as no such statement was contained in the evidence of D.W. 1.

In reply learned counsel for the respondent submitted that the argument presented appellant’s counsel on the issue was nothing but a total misconception. He said what happened on pages 130 – 131 was a review of the evidence of P.W. 1 while the conclusion of the Court of Appeal was on p. 138. On the payment of the N200,000 by the appellant as regards the fictitious documents, learned counsel described the point as minor which did not advance the case of the appellant in any significant manner as it did not detract from the point made by the Court of Appeal that the appellant should have obtained clearance from the Head Office before paying out the said sum of N200,000 when his power, as an Area Manager, was limited to the authorisation of payment of N50,000 only.

I agree with the learned counsel for the respondent that the arguments by learned counsel for the appellant misconceived the judgment of the Court of Appeal. The question of banking practice of the respondent was pleaded by both the appellant and the respondent in paragraph 10 of the Amended Statement of Claim and paragraph 8 of the Statement of Defence respectively. The evidence of the appellant on the issue was to the effect that on 25/11/87 late Alhaji Abdulkadir, the Area Manager (North) of the respondent (Nigeria-Arab Ltd.) in company of the General Manager of Cotos Nigeria Ltd. brought in a cheque of one million Naira and paid the same into the current account of Cotos Nig. Ltd. with respondent’s branch in Bauchi. Both late Abdulkadir and the General Manager Cotos Nig. Ltd. were signatories to the said account at the material time. The evidence of the appellant/plaintiff continued as follows:

“The Area Manager (North) then showed me a resolution by the Cotos Nig. Ltd. approving the withdrawal of N200,000 by the Area Manager (North) & The General Manager for the use of Cotos Nig. Ltd. He showed me a form co appointing him a Chairman/Director of Cot as Nig. Ltd. He left a certified true copy of that form Co with the Bank and confirmed that all the in-fighting within Cotos Nig. Ltd. had been settled with his own appointment as Chairman of Cotos Nig. Ltd. and expulsion of the former Chairman Chief Obomanu. He instructed me to effect payment of the N200,000. He signed for the Cotos Nig. Ltd. as its Chairman with the General Manager and as a sign of his authorising me to pay the money he also signed as Area manager (North). The General Manage of Cotos Nig. Ltd. is Mr. A. Yange. They signed the Internal withdrawal Voucher. I signed also as the Manager. The Area Manager is the Head of all the Branches in the Northern States. I can identify the Internal Withdrawal Voucher we all signed if seen by my signature and that of the Area Manager.

This is the said Voucher. Tendered No. Objection. admitted and marked Exhibit D.”

XXXX

To the best of my knowledge and such instruction was given to me and vide the Area Manager (N) was there and personally instructed me to payout the N200,000 from Cotos Nig. Ltd. I had known the late Area Manager for his financial integrity and is a much more Senior official of the Bank than the alleged signatory to the said letter which I have not seen still now.”

And cross examined, the witness further said:-

The use of Internal Withdrawal Voucher is a proper mode of withdrawal in the Nig. Arab Bank Nig. Ltd. Cotos Nig. Ltd. deserved such attention especially when it is backed by an Area Manager North of the Defendant Bank.”

P.W.1 Dali Lawal, the Branch Manager of the respondent said in his evidence as follows:-

“The practice of the Arab Bank in approving facilities is that all applications are forwarded to our Area Office. The Area Manager can approve up to N50,000 anything above that must be forwarded to the Head Office in Lagos. A Manager has no power to disburse any funds in our Bank. A cheque must be used in withdrawing from a current account, if it is a saving account a withdrawal voucher must be used. If it is an internal transaction then a contra voucher is used if the amount is below N1,000 one officer can authorize payment. From N1000 – 5,000 must be 2 officers, officer on “A” and “B” signatories. From N5,000 – N10,000 must be signed by either A or “B” signatory and the Accountant or Assistant Manager, N10,000 and above the Manager must countersign. Internal withdrawal vouchers are never used for withdrawal from current accounts, only cheques are allowed.”

XXXX

“On 25/11/87 I received a letter from our Managing Director. I see Exhibit “D”, it is an Internal withdrawal voucher raised internally to operate a current account. If it is to be used internally the name and Account No. of the Account holder must appear but none appears here. The later Area Manager who signed it acted as both the Drawee and also the Authorising Officer. The Late Area Manager acted wrongly.”

The learned Justice of the Court of Appeal after thoroughly considering the evidence came to the following unimpeachable conclusion in his judgment:-

“It is not disputed that an Area Manager could only approve credit facilities to the limit of N50,000.00 while the respondent in his status, is confined to N1,500.00 ceiling.

The use of an internal voucher instead of a cheque for the withdrawal of the sum of money complained of, was, undeniably, contrary to the prevailing Banking practice in the appellant’s establishment. The irregularity of the transaction was therefore total, and on the part of the respondent, grossly negligent and disquieting.

The only defence raised by the respondent was a plea, in Military Parlance, of “superior order” of the Area Manager. Respondent could not resist the latter’s representation, even if it was apparently irregular and indefensible.

The representations made, according to the respondent, by the Area Manager, (Abdulkadir) that he was the incumbent Chairman of the Company (Cottos) in virtue of his position in the appellant’s Bank and a Director of it (Cottos) were not true and the documents presented to the respondent in support of the claim were, accordingly to D.W.1, fictitious, a situation that could have been easily and quickly verified from the Head Office of the Bank in Lagos.

From the evidence on record, it seems to me that there was some scheming, the respondent appears to have withheld the whole truth about the transaction in question.”

The issue is answered in the affirmative and ground 5 of the Grounds of Appeal to which it is hinged fails.

The next and last issue in this appeal is Issue No.6 derived from ground 5 of the Grounds of Appeal. The complaint was that the appellant before his summary dismissal was not given fair hearing. It was claimed that the appellant was not given a written query as stipulated in Exhibit G but was invited to the respondent’s head office in Lagos and on arrival he reported to the respondent’s Executive Director who there and then requested the appellant to brief him on the Cotos Nig. Ltd. account and the withdrawal of N2,000,000.00 therefrom. The appellant did so and he was asked to reduce the discussion in writing which he also did. It was submitted that there was no contemplation of any disciplinary action against the appellant at the time and therefore the only reasonable inference that could be drawn is that the appellant only discussed with the respondent’s Executive Director. It was submitted that the dismissal of the appellant was wrongful and reliance was put on Exhibit G, the provision of fair hearing in the 1979Constitution as well as the decisions in Baba v. Nigerian Civil Aviation Training Centre & Anor. (1991) 7 SCNJ 1; (1991) 5 NWLR (Pt. 192) 388; Oyeyemi v. Commissioner for Local Government Kwara State (1992) 2 SCNJ 266; (1992) 2 NWLR (Pt.226) 661 and The State v. Olu Onagoruwa (1992) SCNJ 1; (1992) 2 NWLR (Pt. 221) 33.

In response it was submitted on behalf of the respondent that the appellant was orally queried as a result of which he made written submission. It was contended that the oral query to the appellant followed by his written reply satisfied the requirement of the law, the important thing being that he was given opportunity to explain himself. It was further contended that the case was simply of master and servant with no statutory flavour and that as the appellant was guilty of serious misconduct, the summary termination of his employment by the respondent was in order.

In paragraph 16 of the Amended Statement of Claim, the appellant pleaded as follows:-

“16. That plaintiff avers and will contend that his dismissal is unconstitutional contrary to natural justice and contrary to rules governing his conditions of service as contained in the collective agreement between Nigeria Employers Association of Banks, Insurance and Allied Institutions and Association of Employees of Banks. Insurance and Financial Institutions. The plaintiff will rely on the agreement at the trial.”

The respondent on his part pleaded thus in paragraph 16 of his Statement of Defence –

“16. The defendant will at the hearing put the plaintiff to the strictest proof thereof as to the unconstitutionality of his dismissal, we shall also contend that the summary dismissal of the plaintiff was in order as it touches on the essential ingredients of summary dismissal.”

The learned Justice of the Court of Appeal in his lead judgment came to the following conclusions and rightly too in my opinion –

“There is yet another phase to Issue C in the appellant’s brief of argument. This is equally important in the determination of this appeal. It poses the question was the dismissal of the respondent wrongful

Exhibit C the collective agreement of Association of Banks, Insurance and Allied Institutions, etcetera is, at best, a “gentlemen’s agreement”; an extra-legal document totally devoid of sanctions. It is a product of trade unionist’s pressure.

The respondent claimed both in his pleadings and in his evidence adduced in support of them, that the tenure and security of his employment with the appellant rest on Article (e) of Exhibit G. It reads:

“Before either summary dismissal or warning letter is effected, the employee shall be given a query and afforded the opportunity of defending himself in writing except where the employee has absconded.

There is no evidence that the appellant as an employee of labour subscribed to the foregoing. Even if Exhibit G had the quality and force of law as they say ‘properly so called’, that is, it was brought about by known process of law-making, then the provision of Article 4 (II) that an employee may be summarily dismissed’ for wilful disobedience of lawful order or serious negligence’ is noticeable. The respondent ought to have taken this into account in his pleadings and evidence. He appears to have conveniently avoided that.”

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“Respondent’s entire defence that he acted on the instructions of his Area Manager, Abdulkadir lacks credibility.

With the duration of the experience in banking the respondent claimed for which he was amply compensated by rapid promotions, he ought to know the limitations of the authority of an Area Manager vis a vis that of the Management at the apex. The authority of the former is clearly penultimate.

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In summary, any act outside the scope of an employee’s duties in his employer’s establishment which is prejudicial to the latter’s interest is wilful misconduct, considering the nature of the business and service in which his master is bound to provide to the customers. Applying the principles stated to the situation of the present appeal, the respondent did not prove his mettle to the end. If he did earlier, he subsequently soiled it.

I now return to the point made by learned counsel for the appellant at the trial of this case that the terms and conditions of service of the respondent are neither statutory nor based on the constitution. These are controlled by Common Law and on Exhibit “A”. Under both, the misconduct exhibited by the respondent in this case justifies instant dismissal.

In Professor Dupe Olatunbosun v. Niser, (1988) 3 NWLR, (Pt. 80) 24 at page 31, the Supreme Court defined misconduct as follows:

“Under Common Law and statute law disobedience of lawful order from any servant high or low, big or small is viewed with seriousness such conduct normally and usually attracts the penalty of summary dismissal as disobedience ranks as one of the worst forms warrant (sic) summary dismissal it is enough that the conduct of the servant of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant”. See also Ajayi v. Texaco Nigeria Ltd. (1987) 3 NWLR (Pt. 62) page 577 at 579 where the Supreme Court held thus:

“There is no fixed rule of law defining the degree of misconduct which would justify a dismissal. It is enough that the conduct of the servant is of a grave and weighty character as to underline the confidence which should exist between him and the master. Working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to premeptorily (sic) dismiss the employee irrespective of the condition of service” .

The lead authorities I have cited are consistent with the definition of Maclyne in his impressive Book on “Unfair Dismissal” 2nd Edition at page 229. The Author stated:

“There is no fixed Rule of Law defining the degree of misconduct which will justify summary dismissal. The conduct complained of has to be looked at in the con of (a) the nature of the business (b) the normal circumstances which prevail at the particular establishment and (c) the employees position. If the conduct, judged in the light of the above circumstances is seen as a deliberate flouting of the contractional conditions then summary dismissal is justified”.

These are findings well supported and justified by the evidence with which I find no reason to interfere. See Joshua Ogunleye v. Babatayo Oni (1990) All NLR 341; (1990)2 NWLR(Pt.135)45 and Tanbani Majamma v. The State (1964) NNLR 205.

For the reasons stated above I find no merit in this appeal. I affirm the judgment of the Court of Appeal. The appeal is dismissed with N10,000.00 costs to the respondent.

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SC.68/1992